Decision of the Human Rights Committee under the Optional
Protocol to the International Covenant on Civil and Political Rights

- forty-seventh session

concerning

Communication No. 490/1992

Submitted by: A. S. and L. S. (names deleted)

Alleged victims: The authors

State party: Australia

Date of communication: 26 December 1991 (initial submission)

The Human Rights Committee, established under article 28 of the
International Covenant on Civil and Political Rights,

Meeting on 30 March 1993,

Adopts the following:

Decision on admissibility

1. The authors of the communication dated 26 December 1991 are A. S.
and L. S., Australian citizens currently residing in Tuross Head, New South
Wales, Australia. They claim to be victims of violations by Australia of
articles 2, 16, 17, 26 and "others possibly to be determined by the
Human Rights Committee" of the International Covenant on Civil and
Political Rights. The Optional Protocol entered into force for Australia
on 25 December 1991.

Facts as submitted by the authors:

2.1 The authors are shareholders and directors of the Sapphire Investments
Ltd. In 19811982, they bought a number of land tracts at Merimbula, New
South Wales. In 1984, they decided to use the land for the construction
of a retirement village, "Valley High Resort Village"; this was
an ambitious project requiring substantial borrowing. Initially, Sapphire
Investments was funded by Esanda Ltd., but in March 1985, the company approached
other financiers for a sizeable loan in order to buy out Esanda and fund
the further development of the project. A. S. approached the E.M. Group,
a Melbournebased consulting group acting as mortgage managers, brokers
and finance consultants. Another company, B.P.T., a governmentlicensed
lender of public investment funds, acted as the trustee of certain property
trusts established and managed by E.M. As the trustee, B.P.T. advanced
money to Sapphire Investments against certain collaterals.

2.2 In 1985 and 1986, disputes arose between the authors and B.P.T./E.M.
concerning the extent of the financial engagements of the latter. They
centred around the issue whether or not B.P.T/E.M. would provide the totality
of the funds required to construct, market and manage Valley High, and
whether or not E.M. would provide, or assist in opening, further credit
lines required by the authors' company in the event that B.P.T. did not
do so. The authors contend that such representations were indeed made;
the respondents contest it.

2.3 On 15 May 1987, the authors filed a Statement of Claim in the Supreme
Court of New South Wales and in the Federal Court of Australia, for breach
of contract and several alleged violations of the Australian Trade Practices
Act. On 16 December 1987 the Federal Court ruled in favour of B.P.T. and
E.M.

2.4 According to the authors, the case before the Federal Court was
"rushed"; they contend that they went into the hearing unprepared
and against their express wishes, after the refusal of the judge to reschedule
the hearing. In this context, they consider that the judge inappropriately
invoked a Bar Association rule which prompted their duly instructed senior
counsel, a Q.C., to retire from the case with immediate effect, after "unsubstantiated"
allegations that he had previously provided commercial and legal advice
to the authors.

2.5 As a result of the adverse decisions, the authors lost their property,
including their family home; they consider themselves victims of illegal
dispossession and believe that this dispossession was orchestrated to cover
up a major financial scandal involving the defendants and to cover "corporate
criminals". In A. S.'s opinion, B.P.T. knowingly entered into a number
a conflicting positions on the Valley High project, with the intention
of fraudulently stripping Sapphire Investments and the A. S. Family Trust
of its assets. The defendants allegedly were aided in this endeavour by
the E.M. Group.

2.6 The authors further consider that the Government, in order to limit
the damage, "colluded" with the judicial authorities to deny
the authors justice. Several appeals for a revision of the judgement addressed
to the Federal Commissioner for Human Rights, the Prime Minister and the
Chief Justice of New South Wales were unsuccessful. The authors admit that
it would be possible to challenge the judgement in the High Court; however,
the office of the AttorneyGeneral has rejected their request for the assignment
of legal aid.

Complaint:

3.1 The authors contend that by precipitating the departure of their
senior counsel in the proceedings before the Federal Court, the judge discriminated
against them and unduly favoured the defendants, who were able to introduce
another senior counsel, whereas the authors themselves were left without
competent legal advice. The judge's action is said to constitute a violation
of articles 2 and 26.

3.2 It is further submitted that the judge unjustly refused to make
a ruling under Section 57 of the Legal Aid Act of New South Wales, when
rejecting the authors' request for a postponement of the hearing, because
the issue of a legal aid assignment had not been settled by the Legal Aid
Commission. A. and L. S. explain that the judge's refusal forced their
children and friends to advancemoney so as to avoid losing the family home
by default. They submit that a decision about the assignment of legal aid
was not made until after the beginning of the trial on 28 August 1987,
with a new senior counsel appearing for the authors, and add that their
new lawyer only had one weekend to study the file.

3.3 The authors claim to be victims of a violation of article 17 of
the Covenant, because the judge allegedly allowed the defendants to introduce
as evidence confidential documentation on A. S. obtained by "illegal
means" from the Federal Department of Social Security. The judge also
did not stop the defendants from introducing allegedly defamatory and unsubstantiated
remarks designed to discredit their honour and reputation. By so doing,
the defendants allegedly were able to distort the court records, which
would otherwise have shown that they were in breach of the Trustee Act
of the State of Victoria.

3.4 In respect of their appeal, the authors allege violations of articles
16, 17 and 26, since the Court of Appeal proceeded with the hearing of
the appeal in the autumn of 1987, even after being informed that L. S.
could not attend the hearing because of illness. The authors further claim
that they were denied equality before the law, because they were denied
legal aid to argue the seven grounds of appeal. In this context, A. S.
indicates that the Court ruled that he, as an Australian of nonanglophone
origin, was capable of representing the interests of Sapphire Investments,
whereas the defendants were represented by a Queen's Counsel.

3.5 Finally, the authors claim a violation of articles 2 and 26, because
the Court of Appeal allegedly did not reach an independent verdict based
on the evidence in the appeal documents, thereby denying the authors an
effective remedy.

Issues and Proceedings before the Committee:

4.1 Before considering any claims contained in a communication, the
Human Rights Committee must, in accordance with rule 87 of its rules of
procedure, decide whether or not it is admissible under the Optional Protocol
to the Covenant.

4.2 With regard to the application of the Optional Protocol to Australia,
the Committee recalls that it entered into force on 25 December 1991. It
observes that the Optional Protocol cannot be applied retroactively and
concludes that the Committee is precluded ratione temporis from
examining events that occurred in 1985-1987, unless it is demonstrated
that these acts or omissions continued or had effects after the entry into
force of the Optional Protocol, constituting in themselves violations of
the Covenant. No evidence has been adduced to show that the proceedings
at issue had such effects.

5. The Human Rights Committee therefore decides:

(a) That the communication is inadmissible;

(b) That this decision shall be transmitted to the authors and, for
information, to the State party.

[Done in English, French and Spanish, the English text being
the original version.]

footnotes

* All persons handling this document are requested to
respect and observe its confidential nature.